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20 It seems, that courts of justice can- Woods & Bemis v. Young. 4 Cranch

not commit for contempts, for an 237. indefinite time; or until the fur- 6 The refusal of the court below to ther order of the court.

Yates v. continue a cause, is no ground for a The People. 6 Johns. Rep. 337. writ of error. Marine Insurance 21 A person out of court cannot be Company v. Hodgson. 6 Cranch,

committed for a contempt by an or- 206. der of the court, without a writ or

warrant. Ib. 22 A person, who has been regular

CONTRACT. ly committed, and afterwards set-at large, cannot be recommitted by an 1 If a person sends an order to a order crounded upon, and reciting merchant for a particular quantity the original writ or attachment. of goods, on certain terms of credit, Ibid.

and the merchant sends a less quan23 It is a contempt of the court to tity, at a shorter credit, and the

withhold a venire. 1 Dallas, 29. goods so sent are lost by the way, 24 It is a contempt, for which an at- the merchant must bear the loss, för

tachment lies, to endeavor to preju- there is no contract, express or implidice the public mind in writings res- ed, between the parties. Bruce and pecting a cause depending in court. Bruce v. Pearson. 3 Johns. Re1 Dallas, 319.

ports, 534. 25 When the defendant is present, on 2 All contracts are by speciality or

a rule to show cause why an attach- parol ; and if written, and not sealment should not issue against him ed, they are parol agreements. Balfor a contempt, the court will not lard y. Walker. 3 Johns. Cas. 60. make the rule absolute, but proceed 3 A. signed a written agreement, reto give judgment for the offence. citing, that whereas he had sold to Ib.

B. a lot of land, who had agreed to pay him 300l. by a certain day,

and to execute a bond and mortCONTINUANCE.

gage to secure the payment; A.

therefore promised and agreed to 1 Continuavce not entered in B. R. deliver to B. a good and sofficient

till the plea roll is made up. Cur- deed for the land, on delivery of the luis v. Padley.

1 Salk. 179. 2 L. bond and mortgage by B. In an Raym. 872.

action brought by B. against A. on 2 Continuances cannot be returned this agreement, it was held, that

upon the same certiorari with the this being a mutual agreement for original. Tyson v. Hilliard.

1 the sale and purchase, there was a Salk. 269. 2 L. Raym. 1122. valid consideration; and that being 3 The court will not continue an in- a writing signed by the party to be dictment at the motion of the de

charged, it was sufficient under the feudant on account of the ab- statute of frauds ; but four year's sence of a witness, unless such wit

having elapsed from the date of the ness reside within the jurisdiction agreement, before B. gave notice to of the court. 1 Mass. 6.

A. that he should insist on the a. 4 The court will continue an indict

greement, and five years before he ment for fraud pending a civil ac- tendered a performance on his part tion for the same cause.

1 Mass. it was presumed that the parties 32.

had rescinded the contract; and 5 The refusal of the court below to though A. had, within a year of

continue a cause after it is at issue the contract: sold and converel the cannot be assigned for

land to C. so. as 10 incapacitate




himself to perform his agreement illegal and void, the whole is void. with B. yet that circumstance was

Ibid. not held sufficient to control the le- 11 The court has the exclusive power gal presumption that the contract of deciding whether a written conwas rescinded. Ib.

tract be usurious. Levy v. Gadsby. Where A. agreed to deliver to B. 3 Cranch, 181. by the last of May, from 700 to 12 He who sells property on a des1000 barrels of meal, for which B. cription given by himseit, is bound agreed to pay, on delivery, at the in equity to make good that desrate of 6 dollars per barrel, and A. cription. M'Ferran v. Taylor. 3 delivered 700 barrels, and after- Cranch, 270. wards, before the day, tendered to 13 On a contract to deliver flour, its B. 300 barrels more, to make up

value is to be ascertained on the the 1000 barrels; which B. refused; day when it ought to have been deit was held, that D. was bound to livered. Douglass v. M'Allister. 3 receive and pay for the whole 1000 Cranch, 298. barrels; the delivery of any quanti- 14 A court of equity will annul a conty between 700 and 1000 barrels, tract which the defendant has failbeing at the option of A. only, and ed to perform, and cannot perform for his benefit. Desbrough and oth- on his part.

Skillern v.

May. 4 ers v. Neilson and others. 3 Johns. Cranch, 137. Cas. 81.


A letter of credit, directed by misA contract may be optional as to take to John and Joseph, instead of one party, and obligatory on the oth- John and Jeremiah, and delivered to Ib.

John and Jeremiah who furnished 6 In what cases the relation of an goods upon the faith of it, does not inferior and superior officer, will

constitute a contract between the bind the latter to discharge the writer of the letter and John and contracts of the former. 1 Dallas, Jeremiah, to whom it was deliver140.

ed, and parol proof cannot be ad✓ The time of payment is part of the

mitted to make it such. Grant v. origival contract, and if no time of Naylor. 4 Cranch, 224. payment is expressed in a note, the 16 The promise to pay the debt of alaw adjudges it to be payable imme- nother, must be in writing, and candiately; and parol evidence is in- not be explained by parol.

Grant admissible to show a different time v. Naylor. 4 Cranch, 235. of payment. Thompson v. Ketch- 17 B., in Philadelphia, agreed to pay am. 8 Johns. Rep. 189.

to A.'s agent in Amsterdam, 8 A contract must be proved as laid 170,000 guilders on the first of

in the plaintiff's declaration. He March, and if he should fail so to do, cannot give in evidence, an entire then to repay to 1. The value of the contract relating to two distinct guilders at the rate of exchange subjects, when he declares only as current in Philadelphia at the time one of them. Crauford v. Morrell. demand of payment should be made, 8 Johns. Rep. 253.

together with damages at 20 per 9 Where the plaintiff declared on a

cent. in the same manner as if bills contract, by which the defendant a- of exchange had been drawn for greed to pay him a certain soin, for that sum, and they had been returnhalfthe land taken for a certain road; ed protested for non-payment, and and the contract proved at the tri- lawful interest for any delay of al was, that the defendant was to payment which might take place pay for all the land, the variance after the demand. B. paid the was held fatal. Ib.

170,000 guilders in Amsterdam to 10 If part of one entire contract be the ageut of A. on the 13th of May,

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instead of the 1st of March. A. is not entitled to the 20 per cent.

CONUSANCE. damages, but may, in a suit upon the bond given to perform the con- 1 Clairn of conusance refused to the tract, recover interest on the 170.000 university of Oxford, the party, guilders from the 1st of March, to though a member, not being resident the 13th of May. United States v. at Oxford. Hayes y. Long 2 Wils. Gurney. 4 Cranch, 333.

310. 18 When a law is in its nature a con- 2 An ejectment for land in the isle of

tract, when absolute rights have Ely, after not guilty pleaded, a sug. vested under that contract, a repeal gestion made upon the roll without of the law cannot devest those the nient dedire, or confession of the rights. Fletcher v. Peck. 6 Cranch, other party, yet held well. Cotten 88.

v. Johnson. 1 Salk. 183.
19 A party to a contract cannot pro- 3 Conusance must be claimed in the

nounce its own deed invalid, al- first iostance, or at the first day.
though that party be a sovereign Rex v. Agar. 5 Burr. 2820.
State. Ib.

Conusance of pleas refused to the
30 A grant is a contract executed. university of Oxford, because it was

neither claimed in due form, por in 2 A law, annulling conveyances, is due time. Leasingby v. Smith, Sa

unconstitutioval, because it is a law vilian Professor of Geometry in the
impairing the obligation of con- University of Oxford and Doctor in
traets, within the meaning of the Physic. 2 Wils. 406.
constitution of the United States. 5 Claim of conusance ought to be

Fletcher v. Peck. 6 Cranch, 89. entered on a roll, and an affidavit 22 A contract cannot be enforced in to verify a certificate of a chancel

a court of justice, if contrary to an lor of an university. Paternoster v. act of the State, or of Congress. 4 Graham. 2 Str. 810. See also Dallas, 269, 298, 308, 342.

Kendrick v. Kynaston. 1 Black.


6 An allowance in K. B. or in eyre CONTRIBUTION.

is a sufficient ground for a claim of

cognizance, and in stating the claim The masts, spars, rigging and sails of it ought to state one such allowance

a vessel at sea were carried away on the record, without shewing an
by the violence of the weather, and immemorial usage. Forster r. Hex-
after hanging by the vessel's side ат. . 1 L. Rayn. 427. 1 Salk. 183.
for half an hour, were cut loose for ✓ Conusee cannot assign his interest
the preservation of the vessel and after extent and liberate, if conusor
eargo : afterwards being met by a- continues in possession. Hammond
nother ship, part of the cargo was v. Wood. 2 Salk. 563.
taken on board the ship, and brought 8 When either of the universities
into port, the wreck being left; a claims coguizance of a cause, it
salvage of one third of the cargo must be before imparlance. Wells
saved, was decreed to the salvors ; v. Trahern and another. Willes, 233.
and it was held that the owner of When an attorney is plaintiff, the uni-
the cargo saved, was not liable to versity is not entitled to cognizance
the owner of the vessel lost for a

of the cause. ib.
contribution to the loss of the masts,
&c. Nickerson f. al. v. Tyson. 8
lass. 467.


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1 A roluntary settlement of lands

CONVEYANCE VOLUNTARY. CONVICTION I. 351 made in consideration of natural love in a conviction for a refusal, if the and affection is void against a inforınation and conviction state subsequent purchaser for a valua- that he entered lawfully, it need not ble consideration, though with no- shew whether he entered by day or tice of the prior settlement, be- night. Rex v. Theed. 2 L. Raym. fore all the purchase money was

1375. 1 Str. 608. paid, or the deeds executed ; and 4 Conviction good, where only laid though the settlor had other proper

that the evidence was read to the ty at the time of such prior settle- party, The King v. Baker. 2 ment, and did not appear to be then Str. 1240. indebted, and there was no fraud in 5 A conviction may state an offence fact in the transaction : for the law, to have been cominitted in a will, which is in all cases the judge of though the statute upon which it is fraud and covin arising out of facts grounded, gives part of the forfeiand intents, infers fraud in this ture for such offences to the poor of case, upon the construction of the the parish in which they are comstat. 27 Eliz. e. 4. Doe d. Otley v.

mitted. The King v. Wyatt. 2 Manning. 9 East, 59.

L. Raym. 1478. ? Conveyance by tenant for life in 6 Upon a conviction, the defendant's fee, by deed recorded, is no forfeit

summons, appearance, defence, and ure of his estate. 3 Dallas, 486. conviction, must not be stated te

have happened on a day before that

on which the information is alleged CONVICTION.

to have been exhibited and the wit

nesses examined. Kex v. Kent. 2 1. Evidence, Statement of.

L. Raym. 1546. II. Form of

y If a statute directs that a person III. Game Laws.

convicted by a justice of an offence, IV. Lottery Acts.

shall for want of a sufficient disV. Malt Acts.

tress for a penalty he incurs on the VI. Separate Penalties.

eonviction, suffer imprisonment; the VII. Quashing or Appealing from. justice must, before he can issue a VIU. Surplusage in.

warrant for his commitment, state IX. Drity of Justices; E.xecution on on the conviction that he has not &c.

such distress, and enter an adjudi

cation that he be imprisoned. Rex 1. Evidence, Stateinent of v. Chandler. 1 L. Raym. 545.

8 If a statute varies a punishment of 1 In a conviction it is sufficient if a particular offence, according to

enough appears, to shew that the the rank and age of the offender, if evidence was given in the presence

the information in a conviction of the defendant; without stating states his rank and age, and the evthat he was actually present at the idence refers to the person mention

time. R. v. Kempson. Coup. 241. ed in the information, it need not 2 A conviction by a justiee of peace shew his rank and age. Rex v.

is void, unless it seis forth the evi- Tuck. 2 L. Raym 1396.

denee. Rex v. Read. 2 Dong. 486. 9 In a conviction for swearing and 3 If a statute authorizes officers to cursing, the oaths and curses must

enter certain houses, either by day be set out, and that defendant is not or night, provided that in case of a servant, if the penalty of 2s. adany entry by night a constable be judged. The King v. Popplewell. with them, and imposes a penalty

2 Str, 686. The King v. Sparling upon the house keeper, if he refuses 1 Str. 497. to aid them in doing certain acts ; 10. An excuse under a proviso need

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not be taken notice of in a convic- 19 And this, even though it be stated tion. The King v. Bryan. 2 Str. that their appearance was at A., 1101.

and that the evidence was given at 11 Summary convictions must be con- B. R. v. Swallow. 8 Term Rep.

strued strictly. That between such 284. a day and such a day, he killed 20 It is a good objection to a conviethree deer, is well. Considerat, est tion, that it does not state that the quod convictus est, is sufficient, with evidence was given in the defendforisfaciet. Executor of the owner ant's presence. 6 Term Rep. 75. may sue execution. King v. Chan- 21 Per Lord Kenyen. One point in dler. 1 Salk. 378. 1 L. Raymond, the case of R. v. Thompson, (2 Term 581.

Rep. 18.) has always afforded me 12 Where a conviction is removed by great dissatisfaction; namely, that

certiorari, the justices are not order- the court would in any case intend ed to return examination; nor is it that the evidence was given in the done but in the case of a coroner's defendant's presence, without its so inquest, where the court, as supreme appearing upon the face of the concoroner of the kingdomn, does it. viction. 1 Term Rəp. 648, n. Anonymous. Lofft, 348.

22 It is enough that the conviction And see tit. GAME, PENAL Action, &c. sets forth that the witness was ex13 The magistrates ought to state in amined on oath, without stating

the conviction, the whole of the ev- that the magistrate had authority idence for and against the defend- to administer the oath. R. v. Picapt. R. v. Clarke.

8 Terin 'Rep.

ton. 2 East, 195. 220.

23 Where a penalty is to be sued for 14 Where power of conviction is by before justices of the peace within statute given to a magistrate, he is

a certain time after the offence comthe sole judge of the weight of the mitted, upon a conviction for such evidence given before him; and the offence returned by certiorari into court of K. B. will not examine B. R. it ought to appear on the face whether or not he has drawn a right

of the evidence stated in such conconclusion from the evidence : but viction, that the prosecution was in if no evidence appear in the con- time; and if the witness be only viction to support a material part

stated to have mentioned the month of the information, the court will in which the offence was committed, quash the conviction. R. v. J. omitting the year, and there be no Sinith. 8 Term Rep. 588.

word of reference to connect it with 15 Conviction quashed because the the true date, the omission cannot

witness was not sworn and examin- be supplied either by reference to ed in the defendant's presence. R. the offence charged in the informa

v. T. S. Crowther. 1 Term Rep. 125. tion, or by presumption arising from 16 It is not sufficient to read over the the justices having convicted the de

deposition of a witness in the de- fendant. Rer y. Woodcock. 7 fendant's presence.

1 Term Rep. East, 146. 12.5.

24 A conviction stated to be made by 117 But if the defendant confess the justices of the peace, &c. at the pub

charge, the irregularity is cured. lic office in Great Marlborough

R. v. S. Hall. 1 Term Rep. 320. Street, &c. does not legally denote 18 In a conviction, if the defendant that it was made by one of the po

appear and plead, and the evidence lice magistrates under the statute 42 be given on the same day, the court G. 3, c. 76, &c. The King v.

Seale. will intend that the evidence was 8 East, 568. given in the defendant's presence. 25 Though it be proper for a magis2 Term Rep. 18. • Term Rep. 152. trate in drawing op a convictio

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